Adeola Adeyemi-Adedeji

Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

UNIVERSITY OF LAGOS
FACULTY OF LAW
INTRODUCTION TO NIGERIAN LAW AND LEGAL SYSTEM I (JIL 111) LECTURE NOTES

THE NATURE, MEANING, FUNCTIONS AND CLASSIFICATIONS OF LAW

This class is designed to introduce the student to the basic foundational debates regarding the
meaning of law, its functions, and the different classifications into which law can be divided for the
purpose of practice or otherwise. At the end of this class, the student should be able to:

a. Explain what they understand by the nature and meaning of law
b. Identify several functions of law
c. Explain the various classifications of law

The first part of this lecture will address the definition of law, not necessarily with an aim to
providing a foolproof definition, but rather to present the student with the different ways in which
people, lawyers and laymen alike, think of law, and what it means to them. It will therefore reveal
the unending difficulty in providing definitions, particularly of a concept as abstract as law. The
second part of the lecture will address the functions of law. This is closely tied to the first part
because the meaning of law can be deduced from its functions in a particular society. Finally, this
lecture will discuss the different classifications of law, especially as they relate to legal study and
legal practice, so as to provide the student with a greater understanding of the many forms the law
can take, and help identify the significance of each category of law.

The Nature and Meaning of Law

Attempts to define law have never led to a perfect and generally accepted definition of the term, but
the need to understand the term within a relevant context remains important. There is a general or
linguistic definition of law, which would cover even non-legal laws, meaning laws that have nothing
to do with the legal system, such as laws of nature and laws of science, because such a definition has
to do with the meaning of the term, as distinct from its phenomenon.1 Such laws constitute rules of
action, and this earns them the designation “law”.2 Hence, observers who propose such definitions
see law, in whatever context it is being used, as a set of rules. Since this class is not about a general
etymological definition of law, we will limit ourselves to understanding the meaning of law in a
legal sense, that is, the laws that are used in societies to guide human conduct. While it might seem
easy, at first instance, to identify what a law is and therefore define it, further analysis would reveal
that no one definition would capture the meaning of law in all its ramifications.

Some would define law as a set of rules to govern behaviour, the focus being on what the law does.
Others may say that law is a set of rules handed down by a superior or a sovereign to be obeyed by
subjects; here, the definition focuses on the parties involved in making the law, and those for whom
it is made. Still yet, law may be seen as binding rules for the governance of society, in which case the

11 R. Wollheim, ‘The Nature of Law’ (1954) Political studies 128 (quoted in M.D.A. Freeman (1994, 6th ed),

Lloyd’s Introduction to Jurisprudence (Sweet and Maxwell; London) 77

1
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

focus would be on the nature of the rules. None of these definitions would be wrong, but none
would be perfect either. This is because law is many things and serves many purposes, and in many
cases the perspective of the observer would be determined by their present need. It is, in some
respect, like the story of the blind men and the elephant.

Some of the definitions of law that have been given by renowned jurists and philosophers will
reveal the complexity of the issue. The definitions given by these jurists are much influenced by the
school of thought which they subscribe to, and vice versa. For instance, positivists like John Austin
define law as commands issued by a sovereign, although various positivists have different
conceptions of the nature and power of the sovereign. The emphasis on command and sovereignty
shows that the positivist bases the identification of a rule as law on the nature of the issuer of that
rule. Therefore, where the law does not issue from a sovereign commander, it is not law properly-
so-called.3 Law is also regarded as a command because it is seen as an imperative, ordering human
conduct, as opposed to merely providing statements of facts.4 Naturalists, on the other hand, such
as Grotius and Aquinas, believe in the inherent good that must be contained in the law for it to be
valid. Here, it is not so much the tangible giver of the law that is important but the content of the
law, so that any rule that goes against the higher good is not law.

Putting aside these jurisprudential debates, one can confidently say that law, simply put, is a set of
rules meant to govern human conduct in society. This can be said to be the general meaning of law,
in a legal sense. The law can be seen as conferring rights and duties, as well as providing the means
for such rights and duties to be exercised and performed. In every society, one would have to assess
the system in operation to know who makes the law, and what the law does.

The Functions of Law

Having discussed the meaning of law, it is also important to discuss the function of law, since we
must understand why it is important to have rules to govern human behaviour in society. The most
cited function of law, and consequently of legal systems, is to control social conduct and hence
provide social order. Many jurists believe that without law, there would be chaos or anarchy in
human relations. Man would live in a state of nature, and life would be “solitary, nasty, poor,
brutish, and short”.5 Law can then be seen as having the foundational function or the general role of
preserving societal order, for the following reasons:

1. To Preserve Life and Property
2. To Establish and Maintain Efficient Political Structures
3. To Ensure a Minimal Level of Certainty in Human and Group Behaviour
4. To Maintain and Preserve Social Values
5. To Influence the Development of New Social Values

3 See M.D.A. Freeman (1994, 6th ed.), Lloyd’s Introduction to Jurisprudence (Sweet and Maxwell; London) 209-

213
4 Ibid.
5 Thomas Hobbes (1651), The Leviathan (quoted in M.D.A. Freeman (1994, 6th ed.), Lloyd’s Introduction to

Jurisprudence (Sweet and Maxwell; London) 137)

2
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

Perhaps these function can be better understood within the context of the techniques or methods of
social control, as applied by some jurists. Farrah and Dugdale note seven techniques of social
control, viz,
1. Penal Technique
2. Grievance-Remedial Technique
3. Private Arranging Technique
4. Constitutive Technique
5. Administrative-Regulatory Tehnique
6. Fiscal Technique
7. Conferral or Social Benefits Technique6

Each technique can be translated into a function which it seeks to achieve. For instance, the penal
technique functions to punish offenders, and the function of laws that come under this category is
punitive. The conferral of social benefits technique possesses a welfare function; the constitutive
technique reveals the function of establishment, and so on. Therefore, while the functions of law
can be seen from a thematic standpoint, they can also be observed from a practical standpoint of
what actual laws do. This does not mean that one law would perform only one function, but the
functions of a particular piece of legislation, for instance, may adopt several of the above
techniques, and therefore perform several functions.

Classifications of Law

Classifications of law, as Farrar and Dugdale point out, are necessary for legal study because of the
manner in which legal systems, and the law, have developed.7 Usually, in order for a lawyer to
embark on legal matter or prepare a legal case/brief, it would be important to first understand the
areas of law involved in the particular matter. These different areas of law derived from wider
classifications of legal issues and practices. These classifications are significant for substantive legal
study, but they are even more so in practice, since the lawyer must know the nature of the legal
system, the area of law in question, and the type of issues involved, among other things.

This class will focus on six different classifications, two classifications of legal systems, and four
classifications of law. The classifications of legal systems, to a considerable extent, determine the
classifications of law, so we will address the former first.

1. Civil and Common Law: This classification is usually made at a much more advanced level,
and is indicative of the difference between the legal system of most of Continental Europe
and the legal system of England, the former having its roots in Roman Law. Owing to the
spread of European culture to different parts of the world, most legal systems today fall
under one of these categories. The distinction between civil and common law jurisdictions
goes beyond time and space to encompass content and practice, which distinction is
particularly clear in the litigation systems of both jurisdictions.

2. Inquisitorial and Adversarial Systems: This classification reveals a significant distinction
between the civil and the common law jurisdiction, and rather than being a classification of

6
John Farrar and Anthony Dugdale (1990), Introduction to Legal Method (Sweet and Maxwell; London) 15
7 Ibid., p 33

3
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

law is a classification of legal methods relating to adjudication. Farrar and Dugdale define
both methods thus

The adversarial method is one which gives the parties and their lawyers a great deal of
control over the way in which facts are collected and presented.... [while the
inquisitorial method] lies in the fact that the adjudicating body has considerable control
over the way in which the evidence is collected and presented.8

While the civil law jurisdictions operate an inquisitorial system, where the judge inquires
into the facts and the law regarding a case before the courts, the common law system
usually involves an adversarial process where legal practitioners on both sides present
their cases based on their own investigations and discoveries, which they present before the
court. The judge in the inquisitorial system has considerable control over the procedure, but
this kind of control, in the common law system, is spread among the judge, the lawyer and
the jury, where there is a jury.9


3. Civil and Criminal Law: Perhaps the first categorisation which the Common Law legal
student learns is that between civil law and criminal law. This is one of the most basic legal
classifications under the Common Law. Criminal law involves the prosecution of crimes, and
this kind of law usually requires public involvement, meaning the involvement of the
government, as crimes are regarded as offences, not just against private individuals and
groups, but against the state. Crimes are defined in recognised legal instruments, and when
a person performs or is suspected of having performed an act that would qualify as a crime
under the written law or legislation, they are prosecuted by the government. Criminal law
has its terminologies, some of which are as follows:

Prosecutor: This is usually a public servant, i.e., a lawyer who works for the government,
such as the Attorney General or a lawyer in the Ministry of Justice so qualified, who is
empowered to bring a criminal action before the court. In Nigeria, criminal cases are usually
prosecuted in the name of the attorney General, who is the chief legal officer of the country,
or of the state, as the case may be.

Defence: This is the lawyer for the person being charged of having committed an offence.
The defence lawyer may be a private lawyer, or may be a lawyer appointed by the
government for the accused person, where the need arises.

Accused: This is a person, usually a natural person, accused of having committed a crime,
and who has been charged in court for the commission of that crime.
Charge: When a person is accused of having committed a crime, and is brought before the
court, they are said to be charged with that offence, and the official document which is used
to describe their offence (the pleading) is also called a charge.

Civil law here relates to non-criminal matters, which are usually between private persons,
who may be natural or legal persons. The difference is not only in the nature of the parties

8 Ibid., pp 62 & 65.

4
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

involved but in the nature of the claim as well. There can be a civil matter between a
government representative and a private person. Civil matters may not necessarily be
defined by legislation, and may form part of other sources of law, such as case law, as with
the law of negligence where the neighbour principle was established in Donoghue v.
Stevenson10, and the strict liability rule in Rylands v. Fletcher11. Common terminologies in
civil law include:

Plaintiff: This is the person who brings the action before the court, usually the person who
has been wronged. This may be a natural or an artificial person, usually acting in their
private capacity, as civil law is used to address personal harm.

Defendant: This is the person against whom an action is brought, and whose liability the
plaintiff seeks to prove. This may also be a natural or artificial person.

While criminal matters would usually involve the imposition of fines and imprisonment,
civil matters rely on remedies such as damages, restitution, injunction, and so on. Criminal
law seeks to punish the accused for the offence, while civil law seeks to compensate the
plaintiff. A very important difference between criminal and civil law, is as regards the
weight of evidence required to make a case. Whilst in criminal law cases, the onus is on the
prosecution to prove beyond reasonable doubt that the accused committed a crime,12 in civil
matters, both parties are expected to prove their cases on the balance of probabilities, and
this means that the party whose case is stronger wins, regardless of whether there remains
reasonable doubt as to the correctness of their case.

Some people would argue that criminal law is inquisitorial and civil law adversarial because
of the extent of proof required in each instance,13 but this does not necessarily explain the
difference between a truly inquisitorial system such as in civil jurisdictions, and an
adversarial system, as in Common Law jurisdictions.

4. Public and Private Law: On the face of it, public law refers to the system or body of laws that
regulate the public sector, such as government institutions and government interactions
with citizens, while private law covers matters involving parties in their personal capacities,
and the regulation of private interactions.14 This is indeed a correct classification. However,
beyond this, the classification could also refer to the division of practice and institutions in
civil jurisdictions where there is a clear demarcation between private and public legal
matters, the former dealing with matters concerning citizens, and the latter matters
between citizens and the state.15 It is almost like the distinction between civil and criminal
law discussed above, but in this case, it is more than a substantive or procedural difference,
but extends to include an institutional difference as well.

10 {1932} AC 562.
11 (1838) L.R. 3 H.L. 330.
12 See section 36 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN)
13 See Farrar and Dugdale, op. cit, p. 39
14 See J.O Asein [2005, 2nd ed.], Introduction to Nigerian Legal System (Ababa Press; Lagos) 18
15 See Farrar and Dugdale, op. cit., 41

5
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

5. Municipal and International Law: While discussing law above, we have referred to the
application of law within societies, which are usually States or countries. Therefore, the law
we have discussed refers to the law applicable within a particular geopolitical area, as
between persons and institutions. This is known as municipal law. Other than this class of
law, there is also a class of law that applies, not within States, but between States, and this is
known as international law. It is a body of rules that guides states in their conduct when
dealing with one another; so , although our definitions above refer to human conduct
specifically, law, even in its legal sense, applies not just to human beings or natural persons.
Since there is no binding political order per se in the international arena, making it difficult
to identify the sovereign, as required by many positivists, some have questioned the quality
of international law as “law” properly-so-called.

Nevertheless, international law has grown in leaps and bounds in the past decades, and it
now covers individuals and other non-State institutions within its jurisdiction. The
relationship between municipal law and international law is governed by municipal law,
and the participation of a state in international law. However, certain rules of international
law may bind a State to the extent that its municipal law will not suffice as a justification for
non-compliance, such as the rule pacta sunt servanda or jus cogens.

6. Substantive and Adjectival Law: This is a very important classification because it
distinguishes between the essential or constitutive aspect of law and the procedural aspect
of law. While substantive law lays down the rights and duties of parties, procedural law lays
down the way in which such rights and duties are established and enforced. This is
important in every jurisdiction since the lawyer argues substantive issues in procedural
settings, so the lawyer must know the content of the law and how to apply it.16 The civil
lawyer must understand the adjectival law in civil courts, which would be different from the
adjectival law of common law courts, as whether the procedure or practice of a system is
inquisitorial or adversarial will depend on the jurisdiction. Therefore jurisdiction, as
discussed earlier, affects different aspects of legal classification.

The different classifications of law and legal systems are intertwined, in the sense that, the different
classifications intertwine to provide a more comprehensive understanding of what law means and
how law operates in different societies, as well as the role that the law plays.

Considering that this is a class on the Nigerian legal system, it would be apt to end with a brief note
on the classification of law in Nigeria. The Nigerian legal system is based on the Common Law
system of England, and generally comprises adversarial practice. Civil matters and criminal matters
are handled by the same courts, except in special cases where tribunals are established for a
particular purpose. The Nigerian legal education system comprises five years of substantive legal
training in a university, and one year of procedural study in the Nigerisn Law School. Under section
4 of the 1999 Constitution of the Federal Republic of Nigeria, the National Assembly is empowered
as the federal law-making institution in the country, while the Houses of Assembly of respective
states are so empowered within the states. The municipal law of Nigeria consists of legislations,
judicial precedents, customary and Islamic law, delegated legislation, Common Law and doctrines
of equity, and international law, which has been transformed into domestic law by an Act of the

16 See Glanville Williams [1982, 11th ed.], Learning the Law (Stevens and Sons; London) 19-23

6
Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021

National Assembly.17 Specific issues relating to the history and content of the Nigerian legal system
will be discussed in subsequent classes.

17 See section 12 of the 1999 Constitution, and Fawehimi v. Abacha (2000) 4 FWLR 533